Nine Network Australia Pty Ltd v Wagner

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SUPREME COURT OF QUEENSLAND

CITATION:

Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221

PARTIES:

NINE NETWORK AUSTRALIA PTY LTD
ACN 008 685 407
(first appellant)
TCN CHANNEL NINE PTY LTD
ACN 001 549 560
(second appellant)
QUEENSLAND TELEVISION LIMITED
ACN 009 674 373
(third appellant)
WIN TELEVISION QLD PTY LTD
ACN 009 697 198
(fourth appellant)
NINEMSN PTY LIMITED
ACN 077 753 461
(fifth appellant)
NICHOLAS CHARLES CATER
(sixth appellant)
v
DENIS WAGNER
(first respondent)
JOHN WAGNER
(second respondent)
NEILL WAGNER
(third respondent)
JOE WAGNER
(fourth respondent)

FILE NO/S:

Appeal No 14259 of 2019
SC No 11789 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2019] QSC 284 (Applegarth J)

DELIVERED ON:

13 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2020

JUDGES:

Morrison and Mullins JJA and Jackson J

ORDERS:

1. Appeal allowed and the judgment is varied as follows:

(a)  First plaintiff:

As against the first, second, third, fourth and fifth defendants:

1.   It is ordered that the first, second, third, fourth and fifth defendants pay the first plaintiff damages for defamation in the sum of $600,000, including $200,000 for aggravated damages, plus interest in the amount of $63,000;

As against the sixth defendant:

2.   It is ordered that the sixth defendant pay the first plaintiff damages for defamation in the sum of $300,000, including $100,000 for aggravated damages, plus interest in the amount of $31,500.

(b) Second plaintiff:

As against the first, second, third, fourth and fifth defendants:

1.   It is ordered that the first, second, third, fourth and fifth defendants pay the second plaintiff damages for defamation in the sum of $600,000, including $200,000 for aggravated damages, plus interest in the amount of $63,000;

As against the sixth defendant:

2.   It is ordered that the sixth defendant pay the second plaintiff damages for defamation in the sum of $300,000, including $100,000 for aggravated damages, plus interest in the amount of $31,500.

(c)  Third plaintiff:

As against the first, second, third, fourth and fifth defendants:

1.   It is ordered that the first, second, third, fourth and fifth defendants pay the third plaintiff damages for defamation in the sum of $600,000, including $200,000 for aggravated damages, plus interest in the amount of $63,000;

As against the sixth defendant:

2.   It is ordered that the sixth defendant pay the third plaintiff damages for defamation in the sum of $300,000, including $100,000 for aggravated damages, plus interest in the amount of $31,500.

(d) Fourth plaintiff:

As against the first, second, third, fourth and fifth defendants:

1.   It is ordered that the first, second, third, fourth and fifth defendants pay the fourth plaintiff damages for defamation in the sum of $600,000, including $200,000 for aggravated damages, plus interest in the amount of $63,000;

As against the sixth defendant:

2.   It is ordered that the sixth defendant pay the fourth plaintiff damages for defamation in the sum of $300,000, including $100,000 for aggravated damages, plus interest…

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Details
Case
[2020] QCA 221
Decision Date

CaseChat Overview and Summary

The case of Nine Network Australia Pty Ltd v Wagner involves a defamation claim brought by the respondents against the Nine Network appellants and the sixth appellant, a journalist who featured in a 60 Minutes program. The jury found that the program and the journalist conveyed defamatory imputations regarding the respondents' alleged role in causing a flood in Grantham that resulted in twelve deaths. The trial judge made separate final judgments for damages for defamation in favour of each respondent against the Nine Network appellants and the sixth appellant. The appellants challenged the judgments, arguing that they erred in making a separate award against the sixth appellant, which operated cumulatively upon the award made against the Nine Network appellants. The appellants also contended that the damages awarded were excessive and did not bear an appropriate and rational relationship to the harm sustained by the respondents.

The court considered the legal issues regarding the liability of several concurrent tortfeasors, the form of the judgment, and the assessment of damages. The court found that it was appropriate to permit the appellants to raise the question of joint liability or liability as several concurrent tortfeasors on appeal. The court concluded that the judgments should follow the form "the judgment of the court is that… the defendant pay the plaintiff the sum of $X." The court also considered whether the damages awarded bore an appropriate and rational relationship to the harm sustained by the respondents. It found that the appellants' submissions did not establish that the trial judge erred in ensuring an appropriate and rational relationship between the harm sustained by the respondents and the amount of damages awarded.

The court allowed the appeal and varied the judgment, ordering the Nine Network appellants and the sixth appellant to pay damages for defamation to each of the respondents. The judgment specified the amounts of damages for each respondent, including for aggravated damages and interest. The court also ordered the parties to file and serve submissions as to costs within a specified timeframe.

Orders

Orders of the court

1. Appeal allowed and the judgment is varied as follows:

(a) First plaintiff:

As against the first, second, third, fourth and fifth defendants:

1. It is ordered that the first, second, third, fourth and fifth defendants pay the first plaintiff damages for defamation in the sum of $600,000, including $200,000 for aggravated damages, plus interest in the amount of $63,000;

As against the sixth defendant:

2. It is ordered that the sixth defendant pay the first plaintiff damages for defamation in the sum of $300,000, including $100,000 for aggravated damages, plus interest in the amount of $31,500.

(b) Second plaintiff:

As against the first, second, third, fourth and fifth defendants:

1. It is ordered that the first, second, third, fourth and fifth defendants pay the second plaintiff damages for defamation in the sum of $600,000, including $200,000 for aggravated damages, plus interest in the amount of $63,000;

As against the sixth defendant:

2. It is ordered that the sixth defendant pay the second plaintiff damages for defamation in the sum of $300,000, including $100,000 for aggravated damages, plus interest in the amount of $31,500.

(c) Third plaintiff:

As against the first, second, third, fourth and fifth defendants:

1. It is ordered that the first, second, third, fourth and fifth defendants pay the third plaintiff damages for defamation in the sum of $600,000, including $200,000 for aggravated damages, plus interest in the amount of $63,000;

As against the sixth defendant:

2. It is ordered that the sixth defendant pay the third plaintiff damages for defamation in the sum of $300,000, including $100,000 for aggravated damages, plus interest in the amount of $31,500.

(d) Fourth plaintiff:

As against the first, second, third, fourth and fifth defendants:

1. It is ordered that the first, second, third, fourth and fifth defendants pay the fourth plaintiff damages for defamation in the sum of $600,000, including $200,000 for aggravated damages, plus interest in the amount of $63,000;

As against the sixth defendant:

2. It is ordered that the sixth defendant pay the fourth plaintiff damages for defamation in the sum of $300,000, including $100,000 for aggravated damages, plus interest in the amount of $31,500.

2. The appellants are to file and serve any submissions as to costs limited to three pages within seven days.

3. The respondents are to file and serve any submissions as to costs limited to three pages within seven days of service of the appellants’ submissions as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view, the operation and application of the relevant legal principles as to the liability of several concurrent tortfeasors, in a case like the present, is an important question of law. At trial, the appellants sought to obtain a similar outcome to that for which they now contend by submitting for a legally unsustainable “apportionment” principle. I would not shut out the appellants from submitting for a similar outcome based on the application of the correct legal principles. The trial judge was not assisted by submissions as to the application of the relevant principles by the respondents or the appellants. In my view, it is within the proper application of principle to permit the question now raised to be advanced on appeal and I would do so.Form of the judgment Having regard to these reasons, what should be the form of the judgment in this case? First, in a common law action for damages in tort, the form of judgment in favour of a plaintiff was traditionally that “it is adjudged that the plaintiff do recover against the defendant the sum of $X”.[73] That form was reflected in the earlier rules of court of this jurisdiction.[74] The form changed upon the introduction of the Uniform Civil Procedure Rules 1999 (Qld), so that it became that “the judgment of the court is that… the defendant pay the plaintiff the sum of $X”,[75] following a similar change in England and Wales.[76] The judgments should follow that form.[73]Seton’s Form of Judgments and Orders, 7 ed, 1912, vol 1, p 165.[74]Rules of the Supreme Court 1900 (Qld), Schedule 1, Form 184.[75]Uniform Civil Procedure Rules 1999 (Qld), r 975(1) and Approved Form 58.[76]Jacob, Chitty and Jacob’s Queen’s Bench Forms, 21 ed, Form 872. Second, where a judgment for a money sum includes different components, that carry different rights, it is appropriate to identify the different components. A common example is a judgment that includes pre-judgment interest that identifies the amount of that interest. That enables assessment of whether an offer to settle was no less favourable than the plaintiff’s entitlement at the time that the offer was made.[77] So results the form of judgment that “… the defendant do pay the plaintiff $X, including $Y for interest…” which enables the amount of the damages to be calculated.[78][77]Uniform Civil Procedure Rules 1999 (Qld), r 460.[78]Uniform Civil Procedure Rules 1999 (Qld), r 975(1) and Approved Form 58. Third, where a claim is made against joint tortfeasors in the one proceeding usually there should be a single judgment against them that “… the defendants pay the plaintiff the sum of $X”. In this case, the claim made against the Nine Network appellants was against joint tortfeasors, so there should be a single judgment against them. Fourth, where a claim joins causes of action against several tortfeasors in the one proceeding, there should be a separate judgment against each tortfeasor. In this case, the cause of action against the sixth appellant was as a several tortfeasor and there should be a separate judgment against him.

Ratio Decidendi

Legal Principle Established

Section 34 of the Act provides: “34 Damages to bear rational relationship to harmIn determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.” The appellants submitted that the amounts of damages awarded by the trial judge were not determined so as to ensure an appropriate and rational relationship between the harm sustained by each of the respondents and the amount of damages rewarded. Neither of the parties made submissions as to the proper construction of s 34. It is not necessary to consider that possible question in order to decide the appeal. It is enough to recognise that the expression “appropriate and rational relationship” appeared in Hayne J’s reasons in Rogers in a different context:“In Carson, the majority of the Court said that an appellate court hearing appeals in both defamation and personal injury cases needs to ensure that there is an appropriate or rational relationship between the scale of awards in the two classes of case.”[160] (footnotes omitted)[160](2003) 216 CLR 327, 351 [70]. By way of comparison, in s 34 the requirement of an “appropriate and rational relationship” is to be ensured by the trial court as between the harm sustained by the plaintiff and the amount of the damages to be awarded. It may be observed further that, in Rogers, Hayne J considered in some detail the propositions that damage to a reputation is not a commodity having a market value, comparisons between awards for defamation are difficult and that because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-economic injury.[161] Within those considerations, one of the important points made was that “(b)ecause reputation is not bought and sold, it is only in the courts that money values are assigned to the consequences of infliction of harm to reputation”.[162] In simpler language, the only “external standard” against which the required “appropriate and rational relationship” may be measured are other decisions of courts assigning money values to the consequences of infliction of harm to reputation and the cognate process of assigning money values to non-economic losses in other classes of cases such as personal injuries or false imprisonment.[161] ` (2003) 216 CLR 327, 349 – 351 [67] – [70].[162](2003) 216 CLR 327, 350 [68]. Against that background, the appellant’s submissions in support of grounds 5 and 6 of the appeal reiterated some of the arguments raised in respect of ground 4 and ground 3 that need not be considered again. The appellants submitted further that the sizes of the final awards were indicative of an excessive allowance for vindication generally, on the basis that where a substantial sum is to be awarded for injury to reputation and hurt feelings, it is unnecessary to add a further sum for vindication as the already substantial sum will serve to vindicate the respondent’s reputation.